Citation Nr: 1009262
Decision Date: 03/11/10 Archive Date: 03/17/10
DOCKET NO. 08-36 583 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Paul,
Minnesota
THE ISSUES
1. Entitlement to service connection for a middle and low
back disorder.
2. Entitlement to service connection for a chronic
psychiatric disorder manifested by anxiety and depression.
REPRESENTATION
Appellant represented by: Minnesota Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
T. Y. Hawkins, Associate Counsel
INTRODUCTION
The Veteran served on active duty from June 2001 to November
2001, and from November 2005 to August 2007. She also had
service in the Army National Guard.
This matter comes before the Board of Veterans' Appeals
("Board") on appeal from a November 2007 rating decision
issued by the Department of Veterans Affairs ("VA")
Regional Office ("RO") in St. Paul, Minnesota, which denied
the Veteran's claim of entitlement to service connection for
a middle and low back disorder, and claim of entitlement to a
psychological disorder.
In June 2008, the Veteran requested a local hearing at the
RO. In October 2008, she submitted a statement indicating
that she no longer wished to have a local hearing.
Accordingly, her request for an RO hearing is deemed
withdrawn.
The issue of entitlement to service connection for a middle
and low back disorder is addressed in the REMAND portion of
the decision below and is REMANDED to the RO via the Appeals
Management Center ("AMC"), in Washington, DC. VA will
notify the appellant if further action is required.
FINDING OF FACT
The Veteran is not shown by the probative evidence of record
to have a current psychiatric disorder.
CONCLUSION OF LAW
Service connection for a psychiatric disorder is not
warranted. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002
& Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.304, 4.125
(2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Veterans Claims Assistance Act of 2000 ("VCAA")
With respect to the Veteran's claim, VA has met all statutory
and regulatory notice and duty to assist provisions. See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West
2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326 (2009).
a.) Duty to Notify
Under the VCAA, when VA receives a complete or substantially
complete application for benefits, it is required to notify
the claimant and his or her representative, if any, of any
information and medical or lay evidence that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002);
38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet.
App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112,
120-21 (2004) ("Pelegrini II"), the United States Court of
Appeals for Veterans Claims ("Court") held that VA must
inform the claimant of any information and evidence not of
record (1) that is necessary to substantiate the claim; (2)
that VA will seek to provide; (3) that the claimant is
expected to provide; and (4) request that the claimant
provide any evidence in his or her possession that pertains
to the claim. Element (4), however, the requirement of
requesting that the claimant provide any evidence in his
possession that pertains to the claim, was eliminated by the
Secretary during the course of this appeal. See 73 Fed. Reg.
23353 (final rule eliminating fourth element notice as
required under Pelegrini, effective May 30, 2008).
On March 3, 2006, the Court issued a decision in the
consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006), which held that the VCAA notice requirements
of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to
all five elements of a service connection claim. Those five
elements include: (1) veteran status; (2) existence of a
disability; (3) a connection between the veteran's service
and the disability; (4) degree of disability; and (5)
effective date of the disability. The Court held that the
VCAA notice must include notice that a disability rating and
an effective date of the award of benefits will be assigned
if service connection was awarded.
In this case, VA essentially satisfied the notification
requirements of the VCAA by means of a letter dated September
2007. The RO informed the appellant of the types of evidence
needed in order to substantiate her claim of entitlement to
service connection, the division of responsibility between
the appellant and VA for obtaining the required evidence, and
requested that the appellant provide any information or
evidence in her possession that pertained to such claim. 38
U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). The Board notes
that the September 2007 letter also satisfied the
requirements of Dingess by informing the Veteran as to how VA
determines the disability rating and effective date elements
of a claim.
b.) Duty to Assist
With regard to the duty to assist, the claims file contains
the Veteran's service treatment records and a VA mental
health evaluation dated October 2007. Additionally, the
claims file contains the Veteran's statements in support of
her claim. Although, as noted above, the Veteran was
notified via the September 2007 VCAA letter that it was
ultimately her responsibility to submit evidence showing the
existence of the claimed disorder, including copies of any
current treatment records, the claims folder reveals that the
Veteran has not submitted any additional treatment records
that she wished to be considered or provided authorization so
as to allow VA to obtain additional treatment records on her
behalf.
With regard to the October 2007 VA examination report, the
Board notes that the VA examiner indicated that she had
reviewed the complete claims folder, including the Veteran's
service treatment records, performed a comprehensive
evaluation, elicited from the Veteran her history of
psychological symptoms and disorders, and provided clinical
findings detailing the results of her evaluation. She also
provided a complete rationale for her conclusion that there
is no evidence that the Veteran has a current mental health
disorder. Accordingly, the Board finds that the current
examination report is adequate upon which to base a decision
in this case.
In short, the Board has carefully considered the provisions
of the VCAA in light of the record on appeal and, for the
reasons expressed above, finds that the development of the
claim has been consistent with the provisions of the VCAA.
The appellant has been provided every opportunity to submit
evidence and argument in support of his claim and to respond
to the VCAA notice. The purpose behind the notice
requirement has been satisfied because the appellant has been
afforded a meaningful opportunity to participate effectively
in the processing of his appealed claim. Accordingly, the
Board will proceed to a decision on the merits.
II. Applicable Laws and Regulations
The Board has thoroughly reviewed all of the evidence in the
Veteran's claims folder. Although the Board has an
obligation to provide reasons and bases supporting this
decision, there is no need to discuss, in detail, the
evidence submitted by the Veteran or on his behalf. See
Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)
(the Board must review the entire record, but does not have
to discuss each piece of evidence). The analysis below
focuses on the most salient and relevant evidence and on what
this evidence shows, or fails to show, on the claims. The
Veteran must not assume that the Board has overlooked pieces
of evidence that are not explicitly discussed herein. See
Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law
requires only that the Board address its reasons for
rejecting evidence favorable to the Veteran).
The Board must assess the credibility and weight of all
evidence, including the medical evidence, to determine its
probative value, accounting for evidence which it finds to be
persuasive or unpersuasive, and providing reasons for
rejecting any evidence favorable to the claimant. Equal
weight is not accorded to each piece of evidence contained in
the record; every item of evidence does not have the same
probative value. When all the evidence is assembled, VA is
responsible for determining whether the evidence supports the
claim or is in relative equipoise, with the Veteran
prevailing in either event, or whether a preponderance of the
evidence is against the claim, in which case, the claim is
denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in the line of duty, or from aggravation of a preexisting
injury suffered or disease contracted in line of duty. See
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (2009). "In line of
duty" means any injury or disease incurred or aggravated
during a period of active military service, unless such
injury or disease was the result of the Veteran's own willful
misconduct or, for claims filed after October 31, 1990, was
the result of the Veteran's abuse of alcohol or drugs. 38
U.S.C.A. § 105(a); 38 C.F.R. §§ 3.1(m), 3.301 (2009).
The Board notes that the term "active military, naval, or
air service" includes active duty, any period of active duty
for training (ACDUTRA) during which the individual concerned
was disabled or died from a disease or injury incurred or
aggravated in line of duty, and any period of inactive duty
for training (INACDUTRA) during which the individual
concerned was disabled or died (i) from an injury incurred or
aggravated in line of duty; or (ii) from an acute myocardial
infarction, a cardiac arrest, or a cerebrovascular accident
occurring during such training. 38 U.S.C.A. § 101(24) (West
2002 & Supp. 2009); 38 C.F.R. § 3.6(a) (2009).
The term "active duty for training" is, inter alia, full-
time duty in the Armed Forces performed by Reserves for
training purposes or by members of the National Guard of any
State. 38 U.S.C.A. § 101(22) (West 2002 & Supp. 2009); 38
C.F.R. § 3.6(c) (2009). The term "inactive duty for
training" means, inter alia, duty other than full-time duty
prescribed for Reserves or the National Guard of any State.
38 U.S.C.A. § 101(23) (West 2002 & Supp. 2009); 38 C.F.R. §
3.6(d) (2009). It follows from this that service connection
may be granted for disability resulting from disease or
injury incurred or aggravated while performing ACDUTRA, or
from injury incurred or aggravated while performing
INACDUTRA. 38 U.S.C.A. §§ 101, 106, 1110, 1131 (West 2002 &
Supp. 2009).
In order to establish a right to compensation for a present
disability, a veteran must show: "(1) the existence of a
present disability; (2) the in-service incurrence or
aggravation of a disease or injury; and (3) a causal
relationship between the present disability and the disease
or injury incurred or aggravated during service"- the so-
called "nexus" requirement. Shedden v. Principi, 381 F.3d
1163, 1167 (Fed. Cir. 2004).
Alternatively, under 38 C.F.R. § 3.303(b), service connection
may be awarded for a "chronic" condition when (1) a chronic
disease manifests itself and is identified as such in
service, or within the presumptive period under 38 C.F.R. §
3.307, and the veteran presently has the same condition; or
(2) a disease manifests itself during service, or during the
presumptive period, but is not identified until later, and
there is a showing of continuity of related symptomatology
after discharge, and medical evidence relates that
symptomatology to the Veteran's present condition. Savage v.
Gober, 10 Vet. App. 488, 495-98 (1997).
Under 38 U.S.C.A. § 1154(a), VA is also required to give
"due consideration" to "all pertinent medical and lay
evidence" in evaluating a claim for disability or death
benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377
(Fed. Cir. 2007), the United States Court of Appeals for the
Federal Circuit ("Federal Circuit") held that "[l]ay
evidence can be competent and sufficient to establish a
diagnosis of a condition when (1) a layperson is competent to
identify the medical condition, (2) the layperson is
reporting a contemporaneous medical diagnosis, or (3), lay
testimony describing symptoms at the time supports a later
diagnosis by a medical professional." (footnote omitted).
However, the Court has held that "[t]he type of evidence
that will suffice to demonstrate entitlement to service
connection, and the determination of whether lay evidence may
be competent to satisfy any necessary evidentiary hurdles,
depends on the type of disability claimed." Barr v.
Nicholson, 21 Vet. App. 303, 308 (2007).
III. Analysis
The Veteran contends that she has a psychiatric disorder
manifested by symptoms such as anxiety and depression, which
she believes is related to her active duty service in Iraq.
As an initial matter, the Board notes that the Veteran's
service personnel records indicate that she served in Iraq in
Operation Iraqi Freedom. During her June 2000 pre-enlistment
examination, the examiner found that she did not have any
psychiatric disorders. On the accompanying medical history
report, she specifically indicated that she had never had any
nervous trouble of any sort (including anxiety or panic
attacks) and no depression or excessive worry. She further
indicated that she had never experienced frequent trouble
sleeping, had received no counseling of any type, had never
been evaluated or treated for a mental condition, and had
never attempted suicide. However, on her July 2007 post-
deployment health assessment, she noted that she had spend
one or more nights in a hospital during her deployment due to
sleeping problems and anxiety in October 2006. However, on
the last page of the assessment, when asked whether during
this deployment she had sought, or intended to seek
counseling or care for her mental health, the Veteran
answered "no." When asked if she had any concerns about
possible exposure or events during this deployment that she
felt may affect her health, the Veteran only listed sand,
dust and poor air quality. She also answered "no" to the
questions of whether she saw anyone wounded, killed or dead
during this deployment; was she engaged in direct combat
where she discharged her weapon; did she ever feel that she
was in great danger of being killed during this deployment;
and was she currently interested in receiving help for a
stress, emotional, alcohol or family problem. She also
answered "none" to each of the following questions
regarding how often over the last two weeks had she been
bothered by any of the following problems: 1) little interest
of pleasure in doing things; 2) feeling down, depressed, or
hopeless; 3) thoughts that you would be better off dead or
hurting yourself in some way. The examiner concluded that
there was no need to refer the Veteran for any additional
follow-up treatment or counseling, to including
combat/operation stress reaction or mental health treatment.
Following service separation in August 2007, there is no
evidence of record that the Veteran complained of, sought
treatment for, or was diagnosed with any mental health
disorders.
In October 2007, pursuant to her claim of entitlement to
service connection, the Veteran was afforded a mental health
evaluation. The examiner first noted that she had reviewed
the Veteran's claims folder, including her service treatment
records, which showed no evidence that she had been diagnosed
or treated for a psychological or psychiatric disorder in
service. During the interview portion of the evaluation, the
Veteran said that she had attended outpatient treatment for
combat stress approximately 16-20 times while serving in
Iraq. She explained that she had been homesick and had felt
unsafe while driving a fuel truck, to the point where she
felt that she could not drive any longer had ultimately been
"pulled off the road." However, she denied any
hospitalizations for a mental health disorder or condition.
When asked to talk about her current symptoms, she said that
she may have some depression or anxiety "from time to time"
and noted that she became depressed every couple of weeks
usually due to the break-up with her ex-boyfriend, with whom
she still resided. She also described waking up sweating
about every 3-4 weeks, a little loss of pleasure in
activities, some feelings of worthlessness, and feeling that
she cannot do anything right. She specifically noted that
her biggest stressor had been the break-up with her boyfriend
while she was on deployment, and said that living with him
was very stressful. During a mental status evaluation, the
examiner noted that the Veteran was clean, casually-dressed
and cooperative. Her mood was good and her affect was
normal; she was oriented to time, person and place, and her
thought content and process were unremarkable. Insight and
judgment were normal, and she denied any delusions or
hallucinations. She also denied panic attacks, ritualistic
or obsessive behavior, suicidal/homicidal thoughts, or
episodes of violence. Although she stated that her current
unemployment was as a result of her mental disorders, she
later claimed that she did not want to work because she was
planning on returning to school in a few months.
The VA examiner concluded that the Veteran did not meet the
criteria for any known mental health disorder according to
the Diagnostic and Statistical Manual for Mental Disorders
("DSM-IV"). Rather, on Axis IV, which pertains to
psychosocial and environmental problems, she concluded that
it was the Veteran's break-up with her boyfriend, as well as
adjusting to civilian life and being home from the war, that
were the causes of her symptomatology. She assigned the
Veteran a Global Assessment of Functioning ("GAF") score of
75, which indicates that if symptoms are present, they are
transient and expectable reactions to psychosocial stressors
(e.g., difficulty concentrating after family argument) and no
more than slight impairment in social, occupational or school
functioning. See 38 C.F.R. § 4.130 (incorporating by
reference VA's adoption of the DSM-IV, for rating purposes).
Also of record is a letter from one of the Veteran's fellow
soldiers, K.P., who wrote that, when the Veteran returned
from service in Iraq, she was "a different person," who
became quiet and did not have much of a sense of humor. She
also indicated that the Veteran did not want to drive because
she was fearful of having an accident.
IV. Conclusion
Having reviewed the complete claims folder, the Board finds
that the preponderance of the evidence of record is against
the Veteran's claim of entitlement to service connection for
a psychiatric disorder.
In this regard, the Board notes that whether a physician
provides a basis for his or her medical opinion goes to the
weight or credibility of the evidence in the adjudication of
the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379,
382 (1998). Other factors for assessing the probative value
of a medical opinion are the physician's access to the claims
folder and the thoroughness and detail of the opinion. See
Prejean v. West, 13 Vet. App. 444, 448-9 (2000).
In this case, the VA examiner reviewed the Veteran's service
treatment reports, elicited from the Veteran her history of
mental health disorder symptomatology, and performed a
complete mental status evaluation, after which, she concluded
that the Veteran did not have a diagnosable mental health
disorder according to the DSM-IV. In arriving at this
conclusion, the examiner specifically provided a complete
basis and rationale for her finding, specifically noting that
the reasons for the Veteran's feeling of anxiety and
depression were more likely due to the break-up with her
boyfriend, as well as having to adjust to being back home
from overseas duty. As noted above, the threshold
requirement for service connection to be granted is competent
evidence of the current existence of the claimed disorder.
See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v.
Derwinski, 3 Vet. App. 223 (1992); Shedden v. Principi,
supra. Therefore, in the absence of a diagnosed psychiatric
disorder at any time during the pendency of this appeal,
service connection may not be granted. Id.
In addition to the VA examiner's report, the Board has also
considered the Veteran's lay assertions that she has anxiety
and depression as a result of her military service in Iraq,
as well as the statement from K.P. regarding her observations
of the Veteran's post-deployment behavior and mood. In this
regard, the Court has repeatedly held that laypersons, such
as the Veteran and K.P., are competent to report what they
experience with their own senses. See Charles v. Principi,
16 Vet. App. 370, 374-75 (2002); Washington v. Nicholson, 19
Vet. App. 362, 368 (2005). As such, their lay reports are
entitled to some probative weight.
However, mere symptoms, such as feelings of anxiety, alone,
without a diagnosed or identifiable underlying malady or
condition does not in and of itself constitute a disability
for which service connection may be granted. See Sanchez-
Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal
dismissed in part, and vacated and remanded in part sub nom.
Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001).
Furthermore, a layperson without medical training or
experience is not competent to offer an opinion on complex
medical issues, such as associating feelings of sadness and
anxiety with a specific underlying psychiatric disorder. See
Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007)
(explaining in footnote 4 that a veteran is competent to
provide a diagnosis of a simple condition such as a broken
leg, but not competent to provide evidence as to more complex
medical questions); see also Espiritu v. Derwinski, 2 Vet.
App. 492 (1992) (a layperson without the appropriate medical
training and expertise is not competent to provide a
probative opinion on a medical matter, to include a diagnosis
of a specific disability and a determination of the origins
of a specific disorder). As a result, while the Board has
considered the lay statements of the Veteran and her friend,
the Board ultimately places more probative weight on the
opinion of the competent health care specialist who undertook
a thorough mental health evaluation.
Accordingly, the Board concludes that the probative evidence
of record is against the Veteran's claim of entitlement to
service connection for a psychological disorder. The
"benefit-of-the-doubt" rule enunciated in 38 U.S.C.A. §
5107(b) is not applicable, as there is not an approximate
balance of evidence. See generally Gilbert v. Derwinski, 1
Vet. App. 49 (1990) ; Ortiz v. Principi, 274 F. 3d 1361 (Fed.
Cir. 2001).
ORDER
The claim of entitlement to service connection for a
psychiatric disorder manifested by anxiety and depression is
denied.
REMAND
The Veteran claims entitlement to service connection for a
middle and low back disorder. Specifically, she contends
that she first began to experience back pain in November 2005
as a result of wearing body armor and carrying heavy
equipment. See VA examination report, October 2007.
In order to establish a right to compensation for a present
disability, a veteran must show: "(1) the existence of a
present disability; (2) the in-service incurrence or
aggravation of a disease or injury; and (3) a causal
relationship between the present disability and the disease
or injury incurred or aggravated during service" - the so-
called "nexus" requirement. Shedden v. Principi, 381 F.3d
1163, 1167 (Fed. Cir. 2004).
That an injury or disease occurred in service is not enough;
there must also be a chronic disability resulting from that
injury or disease. If there is no showing of a resulting
chronic condition during service, then a showing of
continuity of symptomatology after service is required to
support a finding of chronicity. 38 C.F.R. § 3.303(b)
(2009). Service connection may also be granted for any
injury or disease diagnosed after discharge, when all the
evidence, including that pertinent to service, establishes
that the disease or injury was incurred in service. 38
C.F.R. § 3.303(d) (2009).
In this regard, the Board observes that the Veteran's June
2000 pre-enlistment examination revealed normal findings for
the spine and other musculoskeletal system. However, a July
2003 examination report shows that she was seen for low back
pain that occurred after a day of recurrent heavy lifting and
bending. Although her commanding officer failed to complete
the portion of the DA 2173 form relating to the Veteran's
duty status, it appears that her injury occurred during
weekend drills with the National Guard. See buddy statement,
November 2008. She was diagnosed with an acute left
lumbosacral strain and was prescribed bed rest with Motrin, a
muscle relaxant, ice and warm/moist heat. She was also
advised to follow-up with a civilian doctor within 48-72
hours. There are no further service treatment records
evidencing a chronic or recurrent back disorder, nor any
records showing that the Veteran sought treatment from a
civilian doctor during service. Subsequent in-service
examination reports revealed normal findings for the spine,
and the Veteran reported that she did not have a chronic back
disorder.
The claims folder contains no evidence that the Veteran
complained of, sought treatment for, or was diagnosed with a
chronic back disorder following service.
In October 2007, pursuant to her claim for service
connection, the Veteran was afforded a VA back examination.
As an initial matter, the VA examiner noted that she did not
have access to the Veteran's VA claims folder or her service
treatment records. As noted above, the Veteran reported that
she had experienced pain in her middle and low back beginning
in November 2005 as a result of wearing body armor and heavy
equipment. She also claimed that she had no post-service
history of a chronic back disorder. In addition, there is no
indication that she advised the examiner of the July 2003
acute back strain.
The examiner noted that a complete physical examination
revealed normal findings for the Veteran's spine. X-rays of
the lumbosacral spine revealed four lumbar vertebral bodies,
otherwise, unremarkable, and x-rays of the thoracolumbar
spine revealed mild scoliosis convex to the right, but
otherwise, unremarkable. Although the Veteran complained of
some back stiffness without pain, she said that she did not
experience muscle spasms, radiculopathy, or bowel/bladder
symptoms, and there was no objective evidence of arthritis.
Gait and posture were normal, and she presented with a normal
range of motion of the spine without abnormalities or pain
with movement.
The examiner concluded that, based on her examination,
including diagnostic tests, there was no objective evidence
that the Veteran had a pathologic back disorder. However,
she then qualified her findings by noting that she was unable
to render an opinion as to whether the Veteran has had
ongoing problems with her spine that would be attributable to
her military service without a review of her service
treatment records.
As noted above, the claims file was apparently not available
for review during the VA examination. In this regard, the
Board notes that the absence of a claims file review does not
necessarily render an examination inadequate or reduce the
probative value of a medical opinion. See Nieves-Rodriguez
v. Peake, 06-312 (U.S. Vet. App. Dec. 1, 2008); Snuffer v.
Gober, 10 Vet. App. 400 (1997). However, in the current
case, because the VA examiner specifically qualified her
statement, noting that her findings on examination were
negative, but that she was unable to render a conclusive
opinion without a review of the Veteran's claims file,
including service treatment records. Given this statement by
the examiner, the Board finds that a clarification of the VA
examination report is necessary to afford the Veteran a
proper assessment of her claim. 38 U.S.C.A. § 5103A (West
2002).
Accordingly, the case is REMANDED for the following action:
1. Contact the VA examiner who performed
the October 2007 back examination and
provide her access to the complete claims
folder, including the Veteran's available
service treatment records. The examiner
should note that the claims folder has
been reviewed, and offer responses to the
following inquiries:
a.) Provide an opinion as to whether
the Veteran has a current and chronic
middle and/or low back disorder.
b.) As to any current and chronic back
disorder(s) identified, the examiner is
asked to provide an opinion as to
whether it is at least as likely as not
(i.e., whether there is at least a 50
percent probability) that any middle or
low back disorder is due to an injury
or any other incident of active duty
service.
2. If the original VA examiner is
unavailable, the RO/AMC is to schedule the
Veteran for a second VA back examination
to determine a.) whether she has a
current, chronic back disorder, and b.)
whether such disorder is the result of an
injury or some other incident of active
duty service. Any tests deemed necessary
should be conducted. The claims folder
must be provided to the examiner for
review in conjunction with the
examination, and the examiner must state
that the claims folder has been reviewed.
The examiner should elicit from the
Veteran a complete history of her middle
and/or low back disorders and
symptomatology. As to any current back
disorder(s) found, the clinician is asked
to indicate whether it is at least as
likely as not (i.e., whether there is at
least a 50 percent probability) that such
disorder is related to service. Any and
all opinions must be accompanied by a
complete rationale.
The clinician is advised that the term
"as likely as not" does not mean within
the realm of possibility. Rather, it
means that the weight of medical evidence
both for and against a conclusion is so
evenly divided that it is medically sound
to find in favor of causation as to find
against causation. "More likely" and
"as likely" support the contended causal
relationship; "less likely" weighs
against the claim.
If the examiner is unable to provide the
requested opinion without resorting to
speculation, it should be so stated, along
with a complete rationale for why he or
she is unable to provide such an opinion.
3. Thereafter, review the claims folder
to ensure that the foregoing requested
development has been completed. If any
benefit sought on appeal is not granted,
the Veteran and his representative should
be provided with a Supplemental Statement
of the Case ("SSOC") and afforded the
opportunity to respond thereto. The
matter should then be returned to the
Board, if in order, for further appellate
process.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
______________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs